Supreme Court Ponders Kashmir Article 370 Repeal: A Constitutional Conundrum

Court questions if the revoked provision of Kashmir Article 370 can be touched, stirring debates!

In a crucial legal proceeding, the Supreme Court of India has been examining the issue of the abrogation of Kashmir Article 370 of the Constitution, which granted special status to the region of Jammu and Kashmir. The provision was repealed by the Indian government in 2019, leading to a flurry of petitions challenging the decision. The five-judge constitution bench, led by Chief Justice DY Chandrachud, is now delving into the complexities surrounding the revocation and its implications.

The central concern raised during the hearing is whether there exists a mechanism to abrogate Article 370 when the people of Jammu and Kashmir desire it. The court is also grappling with the question of whether treating the repealed provision as untouchable would introduce a “new category” beyond the basic structure of the Constitution.

One of the main arguments presented before the court is whether Article 370 had acquired a permanent status with the dissolution of the constituent assembly of Jammu and Kashmir. Senior advocate Kapil Sibal, representing National Conference leader Mohd Akbar Lone, maintained that the original framers of the Constitution had an understanding with Maharaja Hari Singh of Jammu and Kashmir. The instrument of accession to India was signed to address the challenges posed by Pakistani infiltrators, leading to the insertion of Article 370. Sibal argued that this provision cannot be abrogated through any subsequent process.

Abdullahs, Muftis exploited J&K people for decades under garb of Article 370 pic.twitter.com/ogBFQShyKD

— Tarun Chugh (@tarunchughbjp) August 4, 2023

However, the bench raised a crucial question, stating that the Constitution is not static but a living document open to amendments. Justice Sanjay Kishan Kaul highlighted that if everyone in Kashmir wants to change Article 370, then it becomes problematic to suggest that there is no mechanism to do so. Chief Justice Chandrachud, expanding on this point, questioned whether Parliament, which has powers under Article 368 to amend the Constitution, could not change or revoke Article 370.

I am not able to understand why honourable supreme is entertaining such type of pleas .

As we all know that #Article370 is a curse for India..

Such types of pleas which can be harmful for the country should not be entertained at all by the supreme court of India . pic.twitter.com/bnfwyv9M5v

— Harshit Fofaliya (@HarshitFofaliya) August 3, 2023

The heart of the matter lies in Article 368, which grants Parliament the power to amend the Constitution by way of addition, variation, or repeal. However, the court must also consider the landmark Kesavananda Bharati verdict of 1973, which introduced the concept of the basic structure doctrine. This doctrine holds that certain fundamental features of the Constitution, such as democracy, secularism, federalism, and the rule of law, cannot be amended by Parliament.

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Mr. Sibal stood firm in his position that without the existence of a constituent assembly, Article 370 had acquired a permanent status. He pointed out that the Constitution of Jammu and Kashmir explicitly prevents any bill for the modification or abrogation of Article 370 from being moved in the legislative assembly. The court, in response, questioned how constitutional machinery could be put in place when there is no constituent assembly to deliberate on the proposal for abrogation or modification.

Thank you @KapilSibal ji for advocating #Article370 pic.twitter.com/B9GqlNpjhC

— ✎𝒜 πundhati🌵 (@Polytikles) August 3, 2023

The court proceedings also brought attention to proviso 3 of Article 370, which states that the President may declare the article inoperative or with exceptions and modifications, provided the Constituent Assembly of the State recommends it. However, since the constituent assembly ceased to exist after drafting the Constitution for Jammu and Kashmir, the interpretation of this proviso becomes crucial in determining the permanence of Article 370.

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The hearing remains ongoing, and the court will resume the discussions on August 8th. The issue holds immense significance, as it touches upon the delicate balance between constitutional amendments, the will of the people, and the preservation of the Constitution’s core principles.

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